Robert
Stevens wrote:
Is
your proposition that "fault" for apportionment should
be more subjectively-based than "fault" in the context
of liability premised on the notion that apportionment is conducted
under a "just & equitable" regime rather than a "comparison
of degrees of fault" regime? I don't see that it matters because,
in either case, one first has to determine what one means by fault.
I
think the degree of fault that a claimant needs to establish in
order to bring a successful claim varies. Where two defendants are
jointly liable for the commission of a tort where liability is strict,
such as conversion, in determining the appropriate contribution
as between the two of them the standard applicable in order to establish
liability is obviously of no relevance. I think the same is true
where the defendants are both liable for torts committed through
negligence.
Jones
v Manchester City Corp is a nice illustration. As between
claimant and defendant doctor, the doctor's lack of experience
was irrelevant in relation to the standard of care expected. As
between doctor and hospital (or doctor and anaesthetist) the doctor's
inexperience was highly relevant in determining the parties relative
fault for purposes of contribution.
This
doesn't, of course, mean that the test is wholly subjective. If
in a car accident which is the result of the carelessness of two
defendant drivers, one driver cannot seek to argue that he is particularly
clumsy, or reckless and so less at fault when compared with his
fellow tortfeasor. Some of our characteristics (eg our clumsiness,
stupidity, recklessness) we have to take responsibility for. However,
the range of characteristics which are relevant in relation to contribution
claims (and the defence of contributory negligence) are rather different
from those relevant at the liability stage. This is because what
we mean by 'fault' is rather different.
